DRI’s Judicial Task Force recently issued its report, Without Fear or Favor in 2011, which comprehensively addresses various challenges to judicial independence and threats to the fairness of our system of justice. These threats are our legal system’s super virus, seemingly immune to any cure and constantly mutating into far more dangerous forms. The types of threats confronting our legal system include budget cuts to state court systems so severe that the periodic closing of courthouses has been required, to proposals to radically alter merit selection systems, including one that would require judges to periodically appear before their State Senate to explain their decisions and justify their continued position on the bench. There was a reason why our founding fathers adopted lifetime tenure for federal judges–to eliminate this type of bully pulpit approach to judicial retention.
DRI’s report does not express a preference for one type of judicial selection method over another. The task force recognizes that no judicial selection method is perfect. Both merit selection and judicial election systems have their pros and cons. Rather, DRI’s report explains that whatever selection method is used in a particular state, there are ways it can be improved, and the report provides a number of suggestions to improve the both types of selection methods.
One the troubling problems with judicial elections is the torrent of money flowing into state judicial campaigns. Recent public opinion polls of registered voters cited in DRI’s report demonstrate that the influx of money into judicial elections is viewed by the voting public as a problem. Even many state court judges share that view. The report cites a poll of 2500 state court judges in which 46% of the judges polled felt that campaign donations have at least “a little influence” on judicial decision making, and 56% expressed the view that judges should be prohibited from presiding over a case when one of the sides has given money to their campaign.
Therefore, it should come as no surprise that the task force recommends that State Supreme Courts adopt a rule requiring the automatic disqualification of judges who have received a campaign contribution above a specific threshold from any party or attorney appearing before the judge in any case. As the report was heading to press, New York’s Chief Judge recently proposed that type of automatic disqualification rule based on campaign contributions, and it is hoped that other State Supreme Courts will adopt a similar rule in their respective states. The United States Supreme Court’s decision in Citizens United v. Federal Election Commission, which invalidated limits on campaign contributions makes state judicial disqualification rules more important than ever. If the public’s perception of fairness of our courts is ever lost, immeasurable damage will result to our legal system and the rule of law in America. Thus, the time to act is now.
The report also recommends that an independent panel of judges be appointed to hear disqualification motions and that weak or nonexistent campaign disclosure laws prevalent in many states be strengthened. Tougher disclosure rules will shine a light on those special interest groups targeting judicial elections.
Because judges are being asked to address political or socially sensitive issues with increasing frequency, judicial decisions have become lightening rods for special interest groups on the losing side of those cases. As a result, single issue special interest groups are seeking to turn judicial elections into political referendums as exemplified by the November 2010 Iowa Supreme Court elections. In that retention election, three members of the Iowa Supreme Court were targeted by out of state groups seeking their ouster because of their vote in a controversial decision on same sex marriages. Judges, however, must have the independence to make an impartial decision based on a fair interpretation of the law in light of the facts presented to them even when their decision is politically unpopular. If judges must concern themselves with the latest public opinion polls on hot button issues, the judicial branch will lose its independence and cannot serve as an effective check on the excesses of the legislative and executive branches of state government.
With increased money devoted to judicial elections, the tone and tenor of judicial campaigns has also radically changed. Groups supporting or opposing a judicial candidate are now funding harsh attack ads that either focus on a controversial ruling on a politically sensitive decision or deliberately mischaracterize information about a judge running for election. DRI’s report mentions several notorious examples.
DRI realizes that many attorneys are busy with their practices, and therefore, may be unfamiliar with many of the challenges confronting the judiciary and threatening the fairness of our legal system. Thus, the report is intended to sound a rally call to the organized defense bar to become familiar with these issues and take the necessary steps to protect judicial independence and the integrity of our courts. Thus, the report asks the reader:
• Will you become an advocate against unwarranted attacks on the judiciary or just hope that others will respond to those attacks?
• Will you support amendments to judicial codes requiring disqualification when campaign contributions in judicial elections exceed reasonable limits, or will you ignore the issue of judicial campaign contributions until it directly involves a case you are handling?
• Will you advocate for the development of a process to promptly and fairly resolve judicial recusal or disqualification motions in your state, or will you allow the public’s perception of our legal system’s fairness to be shaped by allowing judges to rule on motions seeking their own disqualification?
• Will you seek adequate funding for our court systems, or simply take a vacation on those days when courthouses around the country cannot afford to open their doors?
• Will you protect the right of an independent judiciary to make politically and popular decisions or stand idly by when special interests seek the roster?
In other words, will you defend our court systems so that the judicial branch can continue to independently uphold justice in your state?
